The Contingency of International Migration Law

This chapter reviews the complex contingency of international migration law. Freedom of movement was once the default position in international law, only to give way to a system that took it for granted that sovereignty entails the ability to restrict immigration. This startling transition is one that is largely forgotten and even at the time was hardly argued for, revealing an apparent case of ‘false necessity’ in which the law could seemingly have gone either way. In further prodding that transition, however, the chapter suggests that one should not fall into the trap of ‘false contingency’. The move to a concept of restrictive migration was, in fact, deeply conditioned by liberal international law’s obliviousness to its own imperial and racial biases. Understanding international law’s evolution requires us to understand how it absorbed imperial laws’ own experimentations with coerced and asymmetric mobility and the crumbling of Empires as spaces of imagined internal movement, notably as Southern bodies sought to move to the North. This can help us reexplore some of international law’s own earlier hesitations about transnational freedom of movement and develop an appreciation of how the flexibility of international legal discourse prepared the ground for exclusions to come. Reimagining the international law of migration would thus entail a radical reassessment of these imperial and racial biases.